In The
Court of Appeals
Seventh District of Texas at Amarillo
Nos. 07-22-00144-CV
TIM BARKLEY AND TERESA BARKLEY, APPELLANTS
V.
JAMES CONNELLY AND KIKI CONNELLY, APPELLEES
On Appeal from the 84th District Court
Hansford County, Texas
Trial Court No. CV05564, Honorable Curt Brancheau, Presiding
June 13, 2023
MEMORANDUM OPINION
Before QUINN, C.J., and PARKER and DOSS, JJ.
Appellants, Tim and Teresa Barkley, plaintiffs below, appeal from a take-nothing
judgment against them in a lawsuit arising from the sale of their family farm to appellees
James and Kiki Connelly. We affirm the judgment of the trial court.
BACKGROUND
The Barkleys farmed land in Hansford County and shared ownership of the 960-
acre property with several other family members. The Connellys farm land nearby. Tim
was not interested in selling his farm, but in March of 2017, having filed for bankruptcy
and nearing retirement, he met with James to discuss the possibility of James subleasing
the property. They also discussed a purchase price of the farm: $2.2 million. The next
day, Tim told James that he and Teresa would sell only if they could buy back their
residence and the roughly forty-acre pasture across the road.1 James understood. He
told the Barkleys that if he bought the farm, he would let them have their house back.
James and Tim drove around the property and talked about the acres Tim wanted to
keep. Sometime later, James and the Barkleys discussed the price of $60,000 for the
Barkleys’ forty-acre pasture. In April of 2017, the Barkleys leased the farm to the
Connellys under a cash lease for 2017.
Meanwhile, the parties negotiated a Purchase and Sale Agreement for the
Connellys’ purchase of the farm. The Barkleys were represented by counsel during the
negotiations. Their bankruptcy lawyer was also involved.
In November of 2017, the Barkleys and other owners, as sellers, and the
Connellys, as purchasers, signed the Purchase and Sale Agreement.2 The agreement
provided for the conveyance of the entire farm, including the Barkleys’ homeplace and
nearby forty-acre pasture, to the Connellys. It also included the following provision,
hereafter referred to as the “merger clause”:
This Agreement constitutes the sole and only agreement of the parties
hereto and supersedes any prior understanding or written or oral
agreements between the parties respecting the within subject matter. This
1 The tract is an unirrigated corner of a center pivot irrigation section.
2 The Purchase and Sale Agreement identifies eleven sellers. The Barkleys owned 20% of the
property while the other nine family members comprised the remaining 80% ownership.
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expressly includes the Offer to Purchase submitted to the Seller on or about
April 10, 2017 on the letterhead of Cecil R. Biggers.
One month later, the Connellys closed on 85% of the farm. The Barkleys conveyed
an undivided five percent interest in the property via warranty deed, withholding the
remainder of their interest until their bankruptcy case was concluded. In November of
2018, the Barkleys’ remaining interest was conveyed to the Connellys via warranty deed.
However, the Barkleys remained on the property. In March of 2019, they emailed the
Connellys and expressed their readiness to buy back the homeplace and pasture for
$60,000. The Connellys’ lawyer responded via letter, explaining that the parties had no
enforceable agreement for the sale3 and informing the Barkleys that the Connellys, while
initially open to the idea of selling the property, now had no intention of doing so due to
the Barkleys’ recent behavior toward the Connellys. The Barkleys were informed that
they had until September 4, 2019, to vacate the property.
On August 9, 2019, the Barkleys, via their lawyer, notified the Connellys that they
still desired to repurchase the property. They enclosed a check for $60,000 and surveys
of the forty-acre tract and the 7.292-acre homeplace surrounding their residence. The
surveys were dated May 17, 2019, and July 5, 2019, respectively. When the Connellys
did not accept the funds, the Barkleys filed this lawsuit on August 19, alleging breach of
contract, fraudulent inducement, and trespass-to-try-title. The Connellys filed a motion
for summary judgment. In May of 2020, the Barkleys amended their petition to add a
promissory estoppel claim and the Connellys amended their motion for summary
3The letter noted that there was no legal description of the property to be conveyed, no agreement
on a sales price, and the agreement was not reduced to writing.
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judgment. After initially denying the Connellys’ motion, the trial court amended its ruling,
granting summary judgment on the breach of contract, trespass-to-try-title, and
promissory estoppel claims in February of 2022. The case proceeded to trial in April of
2022 on the fraudulent inducement cause of action. The jury found that the Connellys
had not induced the Barkleys into entering the Purchase and Sale Agreement through
fraud. The trial court entered a final, take-nothing judgment against the Barkleys,
disposing of all claims. In this appeal, the Barkleys contend the trial court erred in granting
the Connellys’ motion for summary judgment.
STANDARD OF REVIEW
We review a trial court’s decision to grant summary judgment under a de novo
standard of review. Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2018). In
our review, we consider as true all evidence favorable to the nonmovant, and we indulge
every reasonable inference and resolve any doubts in the nonmovant’s favor. Valence
Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). A trial court properly grants
a traditional motion for summary judgment when the movant has established that there
are no genuine issues of material fact and that he is entitled to judgment as a matter of
law. TEX. R. CIV. P. 166a(c); Nassar v. Liberty Mut. Fire Ins. Co., 508 S.W.3d 254, 257
(Tex. 2017) (per curiam).
ANALYSIS
In three issues, the Barkleys argue that summary judgment was improper because:
(1) their breach of contract claim is not barred, (2) the Connellys had no pending summary
judgment motion against their equitable trespass-to-try-title action at the time it was
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dismissed, and (3) promissory estoppel has been recognized as a valid cause of action.
Where, as here, the trial court’s order granting summary judgment does not state the
ground or grounds relied on for its ruling, the summary judgment will be affirmed on
appeal if any of the theories advanced in the motion are meritorious. Carr v. Brasher,
776 S.W.2d 567, 569 (Tex. 1989).
Breach of Contract
The Connellys assert that the Barkleys’ breach of contract claim is barred by the
merger doctrine and the statute of frauds. We first consider application of the merger
doctrine. Generally, we presume that all prior oral and written agreements merge into a
subsequent written contract. Yasuda Fire & Marine Ins. Co. of Am. v. Criaco, 225 S.W.3d
894, 899 (Tex. App.—Houston [14th Dist.] 2007, no pet.). For merger to occur, the same
parties to an earlier agreement must later enter into a written integrated agreement
covering the same subject matter. Fish v. Tandy Corp., 948 S.W.2d 886, 898 (Tex.
App.—Fort Worth 1997, writ denied). A written merger clause is essentially a
memorialization of the merger doctrine. Id. at 899. When parties have entered into a
valid, written, integrated contract, the parol evidence rule precludes enforcement of any
prior or contemporaneous agreement that addresses the same subject matter and is
inconsistent with the written contract. First Bank v. Brumitt, 519 S.W.3d 95, 109–110
(Tex. 2017).
Here, the parties’ written purchase agreement includes a merger clause in which
the parties avowed that the purchase agreement “supersedes any prior understanding or
written or oral agreements between the parties respecting the within subject matter.” The
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broad language of the merger clause disclaims any other agreement respecting the
subject matter of the agreement. It is clear that the subject matter of the agreement
involves the terms of the sale of the Barkleys’ farm. Although the Barkleys argue that the
oral buyback agreement “was part of the sales agreement,” the merger clause expressly
provides that the written agreement is “the sole and only agreement” between the parties,
indicating that the purchase agreement was intended to be the final, integrated agreement
between the parties. Under the purchase agreement, the Connellys have no obligation
to convey any property back to the Barkleys. The merger clause precludes the Barkleys
from adding to or varying the obligations stated in the purchase agreement. Any
understandings or agreements between the Barkleys and the Connellys relating to the
sale of the Barkleys’ farm prior to the signing of the November 2017 purchase agreement
were unequivocally extinguished by the written agreement. See Italian Cowboy Partners,
Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 334 (Tex. 2011) (standard merger
clause “achieves the purpose of ensuring that the contract at issue invalidates or
supersedes any previous agreements”); ISG State Operations, Inc. v. Nat’l Heritage Ins.
Co., 234 S.W.3d 711, 719 (Tex. App.—Eastland 2007, pet. denied) (execution of contract
with merger clause presumes that all prior negotiations have merged into contract;
contract cannot be added to, varied, or contradicted by parol evidence).
However, the parol evidence rule does not preclude enforcement of an agreement
that is “collateral” to and not inconsistent with the written agreement. See ERI Consulting
Eng’rs, Inc. v. Swinnea, 318 S.W.3d 867, 875 (Tex. 2010). The Barkleys claim that the
buyback agreement is enforceable as an agreement that is collateral to the purchase
agreement and that it is not inconsistent with its terms or obligations. See Hubacek v.
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Ennis State Bank, 317 S.W.2d 30, 32 (Tex. 1958); Transit Enters., Inc. v. Addicks Tire &
Auto Supply, Inc., 725 S.W.2d 459, 461 (Tex. App.—Houston [1st Dist.] 1987, no writ)
(parol evidence may be admissible to show collateral, contemporaneous agreements that
are consistent with the underlying agreement to be construed). A collateral agreement is
one that is supported by separate consideration and that the parties “might naturally”
make separately under the circumstances. Hubacek, 317 S.W.2d at 33; see also Boy
Scouts of Am. v. Responsive Terminal Sys., 790 S.W.2d 738, 745 (Tex. App.—Dallas
1990, writ granted) (“To be collateral, the oral agreement must be such as the parties
might naturally make separately and would not ordinarily be expected to embody in the
writing; further, the allegedly collateral agreement must not be so clearly connected with
the principal transaction as to be part and parcel thereof.”).
The Barkleys assert that the understanding that they could buy back a portion of
the farm is what convinced them to sell the farm. Thus, the oral promise was not collateral
to the written agreement but was rather an integral part of the parties’ negotiations.
Further, the oral promise was not supported by separate consideration to indicate it was
a separate transaction. Consequently, the parol evidence rule bars the enforcement of
the allegedly collateral agreement that the Connellys would sell a portion of the farm back
to the Barkleys. Because the oral promise is unenforceable, the Barkleys have no basis
for their breach of contract claim. See Collins v. Allied Pharmacy Mgmt., Inc., 871 S.W.2d
929, 936 (Tex. App.—Houston [14th Dist.] 1994, no writ) (when plaintiff seeks to recover
what he would have gained had promise been performed, gist of action is breach of
unenforceable contract and action is barred by statute of frauds).
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Having determined that the oral promise sought to be enforced by the Barkleys is
unenforceable, we need not address the parties’ arguments concerning the statute of
frauds. The trial court properly granted summary judgment on the breach of contract
claim.
Trespass-to-Try-Title
The Barkleys next argue that the trial court erred in granting summary judgment
on their trespass-to-try-title claims. A trespass-to-try-title claim is the exclusive remedy
by which to resolve competing claims to property. TEX. PROP. CODE ANN. § 22.001(a);
Brumley v. McDuff, 616 S.W.3d 826, 831–32 (Tex. 2021). Such a suit seeks to clear
problems in chains of title or to enable an owner with a right to immediate possession of
the property to recover possession of land being withheld. Martin, 133 S.W.3d at 265–
67. Trespass-to-try-title is statutory and has specific pleading requirements. TEX. PROP.
CODE ANN. § 22.001. The plaintiff must recover upon the strength of his own title. Rogers
v. Ricane Enters., Inc., 884 S.W.2d 763, 768 (Tex. 1994). To recover on their trespass-
to-try-title claim, the Barkleys had the burden to establish (1) a regular chain of
conveyances from the sovereign, (2) superior title out of a common source, (3) title by
limitations, or (4) prior possession and that the possession had not been abandoned. See
Kilpatrick v. McKenzie, 230 S.W.3d 207, 213–14 (Tex. App.—Houston [14th Dist.] 2006,
no pet.). The Barkleys do not assert that they proved title by any of these four methods.
Instead, they rely on their claim that they have equitable title to the property.
A plaintiff in a trespass-to-try-title suit may recover on the strength of an equitable
title as well as a legal one. Cullins v. Foster, 171 S.W.3d 521, 533 (Tex. App.—Houston
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[14th Dist.] 2005, pet. denied). Equitable title is the present right to the legal title.
Carmichael v. Delta Drilling Co., 243 S.W.2d 458, 460 (Tex. Civ. App.—Texarkana 1951,
writ ref’d). “Equitable title may be shown when the plaintiff proves that he has paid the
purchase price and fully performed the obligations under the contract. Upon such
performance, he becomes vested with an equitable title to the property which is sufficient
to allow him to maintain his action in trespass to try title.” White v. Hughs, 867 S.W.2d
846, 849 (Tex. App.—Texarkana 1993, no writ).
The Barkleys base their claim to title on the existence of the oral buyback
agreement discussed above and their tender of $60,000. We have determined that the
oral promise is not an enforceable contract. Accordingly, because the Barkleys had no
legal or equitable title to the property, the trial court did not err in granting the Connellys’
motion for summary judgment on the trespass-to-try-title claim.4
Promissory Estoppel
The Connellys sought summary judgment on the Barkleys’ promissory estoppel
claim on the basis that it is a defensive doctrine, not a cause of action. On appeal, the
Barkleys contend that the trial court erred in granting summary judgment because
promissory estoppel is a recognized cause of action in this jurisdiction.5
4 The Barkleys’ claim that summary judgment was improper because their equitable trespass-to-
try-title claim was not added to their pleadings until after the Connellys moved for summary judgment. We
disagree. In the “Trespass to Try Title” section of their First Amended Petition, the Barkleys asserted that
they “have tendered full payment in order to purchase their property” and the Connellys “refused to tender
a deed for the purchase.” This is a claim of equitable title. See White, 867 S.W.2d at 849. The Connellys’
motion for summary judgment encompassed this claim.
5 The Barkleys cite Texas Private School Foundation, Inc. v. Bullin, No. 07-20-00225-CV, 2021
Tex. App. LEXIS 10118, at *12–13 (Tex. App.—Amarillo Dec. 22, 2021, pet. denied) (mem. op.), for the
proposition that this Court has recognized promissory estoppel as a valid cause of action. We note that the
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Even if we recognize promissory estoppel as a basis for affirmative relief, we
conclude that the trial court’s summary judgment was proper. “Promissory estoppel is an
equitable remedy that is unavailable when an express contract covers the dispute’s
subject matter.” Spicer v. Maxus Healthcare Partners, LLC, 616 S.W.3d 59, 122 (Tex.
App.—Fort Worth 2020, no pet.) (op. on reh’g); see also Subaru of Am., Inc. v. David
McDavid Nissan, Inc., 84 S.W.3d 212, 226 (Tex. 2002) (“[T]he promissory estoppel
doctrine presumes no contract exists . . . .”); Fortune Prod. Co. v. Conoco, Inc., 52 S.W.3d
671, 684 (Tex. 2000) (equitable claim will not lie when a “valid, express contract covers
the subject matter of the parties’ dispute”). It is undisputed that the parties to this lawsuit
entered into a written purchase agreement that governed the conveyance of the property
at issue. The Connellys provided an analysis of the terms of the purchase agreement
and filed relevant portions of it as summary judgment evidence.
A defendant who moves for summary judgment must show the plaintiff cannot
recover on the cause of action alleged. See TEX. R. CIV. P. 166a(c) (to prevail on motion
for summary judgment, movant must demonstrate that no genuine issue of material fact
exists and movant is entitled to judgment as a matter of law). No cause of action based
upon promissory estoppel can exist in favor of the Barkleys because an express contract
governs the subject matter of the promise they seek to enforce. See Jacaman v.
Nationstar Mortg., LLC, No. 04-17-00048-CV, 2018 Tex. App. LEXIS 1207, at *13 (Tex.
App.—San Antonio Feb. 14, 2018, no pet.) (mem. op.) (affirming summary judgment on
Bullin case was transferred to this Court from the Tenth Court of Appeals, a court which has concluded that
promissory estoppel can constitute the basis of a claim for affirmative relief. See Frost Crushed Stone Co.
v. Odell Geer Constr. Co., 110 S.W.3d 41, 44 (Tex. App.—Waco 2002, no pet.). In cases transferred from
other courts, we apply the transferor court’s caselaw. TEX. R. APP. P. 41.3.
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promissory estoppel claim where promissory estoppel not applicable because alleged
promise was covered by valid contract between the parties); 2001 Trinity Fund, LLC v.
Carrizo Oil & Gas, Inc., 393 S.W.3d 442, 457 (Tex. App.—Houston [14th Dist.] 2012, pet.
denied) (merger clause stating that contract contained entire agreement of parties
foreclosed promissory estoppel claim based on alleged oral promises made before
execution of contract); see also El Paso Healthcare Sys., Ltd. v. Piping Rock Corp., 939
S.W.2d 695, 699 (Tex. App.—El Paso 1997, writ denied). Therefore, we conclude that
the Connellys met their burden of proving they were entitled to summary judgment on the
Barkleys’ promissory estoppel claim as a matter of law.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the trial court.
Judy C. Parker
Justice
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